an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Pitfalls of Law Avoidance: War Powers and Hostilities
As commentators and congressmen have noted, Friday marked the 60 day deadline imposed by the War Powers Resolution for obtaining congressional support for the use of US military force against Libya. Rather than seeking such support, lawyers in the Obama Administration appear to be considering ways of tweaking the US role in Libya and framing continuing involvement such that the United States is no longer participating in “hostilities.”
According to the NYTimes “[o]ne concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets . . . By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.”
This is a bad idea for reasons that have nothing to do with the War Powers Resolution. Under the law of armed conflict, although fighters may be attacked at anytime, civilians may only be subject to attack while they are directly participating in hostilities. The proposed role for drone aircraft–collecting tactical intelligence for targeting–constitutes “direct participation in hostilities.” Even if he is not pulling the trigger or a combatant, a spotter (such as a Predator drone operator) is still subject to attack as a direct participant in hostilities. Under the more restrictive characterization proposed by the Obama Administration, gathering tactical intelligence for targeting purposes would not qualify as participation in hostilities, much less direct participation. This characterization of participation in hostilities is not only contrary to international law, but harms the interests of the United States in other theaters of operation. By attempting to narrow the definition of “participation in hostilities” for the purposes of the War Powers Resolution, the Obama Administration risks altering the meaning of this term of art for the purpose of the law of armed conflict. The proposed restrictive definition yields a rule which is completely unworkable for US counterinsurgency operations in Afghanistan.
To understand the significance of this proposed change, let’s turn the tables and consider an analogous situation involving the separation of the collection of tactical intelligence and trigger pulling. In this scenario the spotter is not a US Predator drone operator, but an Afghan civilian, the “trigger puller” is not a NATO fighter pilot, but a member of a Taliban IED team, and the target is not a Libyan tank but a US Army infantry patrol. Under the current law of armed conflict, if US soldiers identified an Afghan civilian acting as spotter for the Taliban, the soldiers could attack the civilian because the civilian would be directly participating in hostilities.
However, under the proposed restrictive definition of participation in hostilities,the Afghan civilian would be immune from attack because he would not be directly participating in hostilities. US troops would be faced with a dilemma.
Option 1: Violate your own rules. If US soldiers attacked the Afghan spotter, the soldiers would be committing a war crime under the Obama Administration's definition.
Option 2: Sacrifice military effectiveness and unnecessarily endanger US personnel. If US soldiers respected the proposed definition and held their fire while the Afghan civilian communicated their position to the Taliban trigger puller, American causalities would be the likely result.
The United States need not be confronted by this choice between acting lawfully and conducting effective military operations. The existing definition of direct participation in hostilities properly balances these competing interests. Whatever steps the Obama Administration takes regarding the War Powers Resolution, attempting to avoid its restrictions by redefining participation in hostilities should not be one of them.